County of Venango v. Borough of Sugarcreek

PELLEGRINI, Judge,

dissenting:

I respectfully dissent.

In Department of General Services v. Ogontz Area Neighbor’s Association, 505 Pa. 614, 483 A.2d 448 (1984), our Supreme Court held that to resolve a conflict between a local zoning ordinance and a proposed land use by another governmental entity, the enabling legislation must first be examined to determine if there is a clear legislative intent as to which one is controlling. If there is no clear legislative intent, legislative intent is determined by interpreting the consequences of a particular interpretation. Statutory Construction Act, 1 Pa. C.S. § 1921(c)(6); 505 Pa. at 628, 483 A.2d at 455. Moreover, our Supreme Court specifically rejected a legislative intent that local zoning was preempted merely because the Commonwealth or other governmental entity had the power of eminent domain to condemn property to carry out the proposed use. 505 Pa. at 626, 483 A.2d at 454.

Here, the majority finds that the provisions of the County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §§ 101-2910, authorizing the county to maintain jails, prisons and buildings, pre-empts local zoning. Specifically, the majority relies on Section 2305 of the Code, 16 P.S. § 2305, which provides, inter alia:

(a) The county commissioners may purchase for not more than the fair market value, take by gift, devise or by the power of eminent domain, in accordance with the provisions of this act, such real property at the county seat or in such other places, as may be authorized by law, as they deem necessary for the purposes of a county courthouse, county jail, prison ... or other county building, ... either in acquisition of a building suitable for such purposes, or in the construction of a new building, or in the alteration, including enlargement, of an existing county building____

(b) The county commissioners may also use any real property at the county seat or elsewhere, as authorized by law, owned by the county, and deemed suitable by them for the purposes aforesaid, except such property as is bound by contract to another public use. (Emphasis added.)

and Section 2315 of the Code, 16 P.S. § 2315:

(b) The county commissioners may provide ... for the construction or alteration, including enlargement of a county court house, county jail, prison ... and such other county buildings, as may be required or authorized by law. Such construction or alteration shall be done at the county seat or elsewhere as authorized by law. (Emphasis added.)

Neither of these provisions under Ogontz is sufficient to show’ a legislative intent to pre-empt local zoning.

Counties are only authorized to undertake an activity if it is an enumerated power conferred upon them by the General Assembly in the County Code or other legislation. The provision of the County Code cited by the majority merely authorizes counties to construct and maintain a jail or prison, but contains no language nor shows any intent that the legislature intended to pre-empt local zoning. In Ogontz, our Supreme Court specifically stated that the legislative grant to a governmental entity to acquire property for an enumerated purpose by eminent domain is insufficient in itself to determine that the legislature intended to pre-empt local zoning. If eminent domain does not evidence a legislative intent to pre-empt local zoning, certainly the mere power to acquire land for a use also cannot.

Relying on the Borough of Tunkhannock v. County of Wyoming, 96 Pa. Commonwealth Ct. 243, 250, 507 A.2d 438, 442 (1986), the majority would interpret “as authorized by law” as contained in those provisions, to mean “action by the commissioners within the sphere of their legal authority” to find legislative intent to pre-empt local zoning powers as applied to the location of county jails or prisons. The consequences of adopting such an interpretation would mean that every time a governmental entity carries out one of its enumerated powers as “authorized by law”, (is there any other way?) then local zoning would automatically be pre-empted. To find that any time another governmental entity carries out one of its enumerated powers, local zoning is pre-empted, is a result completely at variance with our Supreme Court’s holding in Ogontz. The consequences of such an interpretation would frustrate the legislative mandate that local governments implement a comprehensive land use plan for their municipalities, and authorization to establish a jail could be accomplished by the acquisition of another parcel properly zoned that could accommodate a prison. See Ogontz, 505 Pa. at 628, 483 A.2d at 455.

Accordingly, I would reverse.